Imprisonment should only be used if it is (a) necessary to achieve an important social objective and (b) there is no less restrictive means with which the objective can be achieved. Imprisonment should be reserved for those who have committed grave crimes and constitute a real danger to society. Judges should have the right to exercise discretion in sentencing and the ability to consider alternatives under the law.
Comprehensive:
The United Nations Standard Minimum Rules for Non-custodial Measures provide: In order to provide greater flexibility consistent with the nature and gravity of the offence, with the personality and background of the offender and with the protection of society and to avoid unnecessary use of imprisonment, the criminal justice system should provide a wide range of non-custodial measures, from pre-trial to post-sentencing dispositions. The number and types of non-custodial measures available should be determined in such a way so that consistent sentencing remains possible.
Imprisonment should only be used if it is (a) necessary to achieve an important social objective and (b) there is no less restrictive means with which the objective can be achieved. According to the UN Handbook of basic principles and promising practices on alternatives to imprisonment, ‘governments have a duty to justify the use of imprisonment as necessary to achieve an important societal objective for which there are no less restrictive means with which the objective can be achieved.’[1] Judges should have the right to ‘exercise discretion in sentencing and the ability to consider alternatives under the law.’[2] In Fernando v Sri Lanka, the HRC found that the term of one year imprisonment was grossly disproportionate to the offence of contempt of court which the applicant was found to have committed.[3]
The United Nations Standard Minimum Rules for Non-custodial Measures provide:[4] The judicial authority, having at its disposal a range of non-custodial measures, should take into consideration in making its decision the rehabilitative needs of the offender, the protection of society and the interests of the victim, who should be consulted whenever appropriate. Non-custodial sentencing options include:[5] (a) verbal sanctions, such as admonition, reprimand and warning; (b) conditional discharge; (c) status penalties;(d) economic sanctions and monetary penalties, such as fines and day-fines; (e) confiscation or an expropriation order;(f) restitution to the victim or a compensation order; (g) suspended or deferred sentence; (h) probation and judicial supervision; (i) a community service order; (j) referral to an attendance centre; (k) house arrest;(l) Any other mode of non-institutional treatment; (m) Some combination of the measures listed above. The UN Special Rapporteur on Torture noted in a report on a mission to Togo that ‘detention should be a last resort and that the prisons available should be used for those persons who have been sentenced for committing grave crimes and who constitute a real danger to society’.[6] The Committee against Torture has repeatedly called on states to consider non-custodial punishments as a means to reduce prison overcrowding.[7] (See also *inhuman or degrading treatment in detention*; *children – detention as last resort and for shortest time possible*).
[1] United Nations Office on Drugs and Crime Handbook of basic principles and promising practices on alternatives to imprisonment (2007) 4.
[2] United Nations Office on Drugs and Crime Handbook of basic principles and promising practices on alternatives to imprisonment (2007) 25.
[3]Fernando v Sri Lanka communication 1189/2003 (HRC 2005) para.9.2.
[4] See United Nations Standard Minimum Rules for Non-custodial Measures (Tokyo Rules) (1990) para 8.1.
[6] Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, mission to Togo, A/HRC/7/3/Add.5 (2008) para. 69.
[7]See eg Concluding observations, Lithuania CAT/C/CR/31/5 (2004) para 4(k); Concluding observations Kenya CAT/C/KEN/CO/1 (2009) para 15.
Imprisonment should only be used if it is (a) necessary to achieve an important social objective and (b) there is no less restrictive means with which the objective can be achieved. Imprisonment should be reserved for those who have committed grave crimes and constitute a real danger to society. Judges should have the right to exercise discretion in sentencing and the ability to consider alternatives under the law.
Comprehensive:
The United Nations Standard Minimum Rules for Non-custodial Measures provide:
In order to provide greater flexibility consistent with the nature and gravity of the offence, with the personality and background of the offender and with the protection of society and to avoid unnecessary use of imprisonment, the criminal justice system should provide a wide range of non-custodial measures, from pre-trial to post-sentencing dispositions. The number and types of non-custodial measures available should be determined in such a way so that consistent sentencing remains possible.
Imprisonment should only be used if it is (a) necessary to achieve an important social objective and (b) there is no less restrictive means with which the objective can be achieved. According to the UN Handbook of basic principles and promising practices on alternatives to imprisonment, ‘governments have a duty to justify the use of imprisonment as necessary to achieve an important societal objective for which there are no less restrictive means with which the objective can be achieved.’[1] Judges should have the right to ‘exercise discretion in sentencing and the ability to consider alternatives under the law.’[2] In Fernando v Sri Lanka, the HRC found that the term of one year imprisonment was grossly disproportionate to the offence of contempt of court which the applicant was found to have committed.[3]
The United Nations Standard Minimum Rules for Non-custodial Measures provide:[4]
The judicial authority, having at its disposal a range of non-custodial measures, should take into consideration in making its decision the rehabilitative needs of the offender, the protection of society and the interests of the victim, who should be consulted whenever appropriate.
Non-custodial sentencing options include:[5]
(a) verbal sanctions, such as admonition, reprimand and warning; (b) conditional discharge; (c) status penalties;(d) economic sanctions and monetary penalties, such as fines and day-fines; (e) confiscation or an expropriation order;(f) restitution to the victim or a compensation order; (g) suspended or deferred sentence; (h) probation and judicial supervision; (i) a community service order; (j) referral to an attendance centre; (k) house arrest;(l) Any other mode of non-institutional treatment; (m) Some combination of the measures listed above.
The UN Special Rapporteur on Torture noted in a report on a mission to Togo that ‘detention should be a last resort and that the prisons available should be used for those persons who have been sentenced for committing grave crimes and who constitute a real danger to society’.[6] The Committee against Torture has repeatedly called on states to consider non-custodial punishments as a means to reduce prison overcrowding.[7] (See also *inhuman or degrading treatment in detention*; *children – detention as last resort and for shortest time possible*).
[1] United Nations Office on Drugs and Crime Handbook of basic principles and promising practices on alternatives to imprisonment (2007) 4.
[2] United Nations Office on Drugs and Crime Handbook of basic principles and promising practices on alternatives to imprisonment (2007) 25.
[3] Fernando v Sri Lanka communication 1189/2003 (HRC 2005) para.9.2.
[4] See United Nations Standard Minimum Rules for Non-custodial Measures (Tokyo Rules) (1990) para 8.1.
[5] Tokyo Rules para 8.2.
[6] Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, mission to Togo, A/HRC/7/3/Add.5 (2008) para. 69.
[7]See eg Concluding observations, Lithuania CAT/C/CR/31/5 (2004) para 4(k); Concluding observations Kenya CAT/C/KEN/CO/1 (2009) para 15.